Summary

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​On September 9, 2009, Terry Nunley was pulled over by police for failing to properly secure the load on his truck; he was later charged with driving with a suspended license, second offense. The elements of that crime are (1) that a defendant’s license has been suspended, and (2) that he was notified of the first suspension as required by law. To establish these elements, the prosecutor obtained a copy of Nunley’s certified driving record from the Michigan Department of State. That record included a “Certificate of Mailing of Orders and Rest[ricted] Lic[ense],” stating:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST-CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).DATE 6-22-09 [handwritten] OFFICER OR EMPLOYEE F. Bueter [typewritten]

Nunley’s full name and driver’s license number were listed below. The “Order of Suspension or Restricted License” referred to in the certificate is an “Order of Action” that stated in part that Nunley’s driving privileges and license were being “denied and revoked from 06/27/2009 and to at least 06/26/2010,” because of a June 2009 drunk driving conviction. The Order of Action refers to a “certified abstract of court record” attesting to Nunley’s drunk driving conviction and stating that Nunley’s record “contains 2 or more substance abuse convictions in 7 years.”

The prosecutor filed a motion in limine, asking the district court to admit the certificate without requiring testimony from Fred Bueter, the Director of the Driver and Vehicle Records Division, or another Department of State employee. Nunley objected and asserted his right to cross-examine the issuer of the certificate. The district court denied the prosecutor’s motion, reasoning that there was no other purpose for the certificate “except [for use] in litigation” and that thus, the Sixth Amendment required the person who prepared the certificate to appear at trial and be subject to cross-examination.

The prosecutor appealed to the circuit court, which affirmed the district court’s ruling. In a split published decision, the Court of Appeals affirmed the lower courts’ rulings that the Confrontation Clause would be violated if the certificate were admitted without witness testimony. The majority emphasized that the certificate of mailing was neither Nunley’s driving record nor the notice of suspension itself; rather, it was proof of an element of the crime of driving with a suspended license and, therefore, it was “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” The majority noted that the certificate itself could not “be confronted on the when, where, or how the statutory obligation to provide notice of suspension of driving privileges was accomplished.” The dissenting judge concluded that the certificate was non-testimonial in nature despite the fact that it supplies a necessary element of the offense. He reasoned in part that, at the time of the certificate’s creation, it was impossible for Bueter, or any other objective witness, to reasonably believe that the certificate “would be available for use at a later trial.” The prosecutor appeals.